ASHWANI KUMAR MISHRA,J. - (1.) This writ petition is directed against an order dated 26.12.2011, passed by Sub-Divisional Magistrate, Bansdeeh, Ballia, whereby petitioners representation against recovery of excess sum allegedly paid earlier has been rejected. This order has been passed pursuant to a direction issued by this Court in Writ Petition No.54721 of 2011, dated 21.9.2011, which is reproduced hereinafter:- "Heard learned counsel for the parties. The petitioners are claiming revised pay-scale. Learned counsel for the petitioners submitted that vide order dated 18.1.2010 petitioners' pay-scale has been fixed without giving any opportunity and in this regard they have filed representation before respondent no. 3, Annexure-12 to the writ petition, which is pending for consideration. In view of the above, the writ petition is disposed of directing respondent no. 3-Sub-Divisional Magistrate, Tehsil Bansdeeh, Ballia to dispose of the representation of the petitioners expeditiously preferably within a period of three months from the date of presentation of certified copy of this order in accordance to law."
(2.) Petitioners were initially appointed as Seasonal Collection Amin on temporary basis w.e.f. 1.7.1989. They continued to work with interruption uptill 1.7.1991, whereafter petitioners claims to have continued throughout the year against substantive vacancy on temporary basis. The petitioners have filed a supplementary affidavit, alongwith which copy of the service book has been annexed, according to which petitioners were placed in the regular scale of pay w.e.f. 1.1.1996 and all other service benefits including increment etc. had been awarded to them from time to time. The services of petitioners ultimately got regularized w.e.f. 2nd May, 2003. The benefits which had already been granted to petitioners was later withdrawn on the ground that temporary services rendered by petitioners prior to passing of regularization could not have been counted for the purposes of determination of pay scale and grant of increment etc. The authorities, consequently, determined the petitioners' scale of pay, which was subjected to challenge in earlier writ petition. It is pursuant to the order of this Court that matter has been reconsidered and petitioners' claim stands rejected by the order impugned. The order impugned records that petitioners' working prior to his regularization was not to be treated as regular service and such period of working could not have been counted for the purposes of determination of pay scale and increment etc. Certain benefits, therefore, have been withheld by the order impugned. It has also been observed in the order impugned that the services rendered by petitioners in seasonal capacity otherwise cannot be counted for the purposes of payment of pension etc. Aggrieved by this order, petitioners are before this Court.
(3.) Learned counsel for the petitioners places reliance upon the provisions contained in Rule 3(8) of the U.P. Retirement Benefits Rules, 1961 to submit that continuous officiating engagement in a pensionable establishment followed with regularization is liable to be counted towards qualifying service and the decision taken by the authorities is bad in law. It is submitted that petitioners at no point of time have ever misrepresented any facts, and therefore, the benefits already granted to petitioners cannot be withdrawn. Learned counsel, lastly, submits that the withheld service benefits for the period prior to petitioners' regularization, therefore, is clearly arbitrary and the respondents be directed to release such withheld amount. Reliance is placed upon a Division Bench judgment of this Court in Special Appeal No.1891 of 2009 (State of U.P. through Secretary, Revenue Department and others Vs. Ram Sunder Ram), decided on 23.8.2016. Para 13 to 15 of the judgment is relied upon and the same is reproduced hereinafter:- "13. The service record of the petitioner, which is appended alongwith supplementary affidavit filed by the State on 22.12.2015, clearly reveals that no doubt the petitioner was initially inducted in the agriculture department as Seasonal Collection Peon on temporary basis in the year 1976 but he had been accorded regular pay scale and the increment was also given by the department concerned on 1.2.1986 and thereafter he was paid regular pay scales. The engagement of the petitioner was made against substantive post and this is admitted case that he has been accorded pay scales and regular increments and at no point of time the said document had been disputed by the appellants. 14. In the case of Dukh Haran Singh (supra) the Court has taken a view that the petitioner does not qualify for grant of pension as in terms of Regulations 361 and 370 of the Regulations, the services rendered prior to that are neither substantive, permanent nor temporary. The same would not be applicable in the present case as the relief, which has been accorded by learned Single judge is in consonance with the Regulations wherein the petitioner had been accorded pay scale and other benefits against substantive post and as such, his claim cannot be negated on the ground that his nomenclature was as seasonal. The same would not help to the appellants-respondents. 15. We have proceeded to consider the order dated 16.3.2009 and find that the aforesaid fact has also been dealt in detail by learned Single Judge. Once this is the factual situation that the petitioner-respondent had been accorded pay scale and increments, which were duly approved by the competent authority since very beginning, then we are of the considered opinion that the working of the petitioner-respondent cannot be treated as seasonal and no interference is required by us to the order of learned Single Judge." ;